Lu v. Garland

• Court: Court of Appeals for the Ninth Circuit
• Decided: April 28, 2023
• Docket: 22-161
• Status: Unpublished

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS APR 28 2023 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

Min Lu; Jun Li; Mengchen Li, No. 22-161

Petitioners, Agency Nos. A206-216-767 A206-216-768 v. A206-216-769

Merrick B. Garland, U.S. Attorney General, MEMORANDUM* Respondent.

On Petition for Review of an Order of the Board of Immigration Appeals

Submitted April 21, 2023** San Francisco, California

Before: VANDYKE and SANCHEZ, Circuit Judges, and MURPHY***, District Judge.

Lead Petitioner Min Lu, a native and citizen of the People’s Republic of

China, petitioned for review of a Board of Immigration Appeals (BIA) order

affirming the Immigration Judge’s (IJ) adverse credibility determination, denial

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. ** The panel unanimously concludes this case is suitable for decision without oral argument. See Fed. R. App. P. 34(a)(2). *** The Honorable Stephen J. Murphy, III, United States District Judge for the Eastern District of Michigan, sitting by designation. of asylum, withholding of removal, and protection under the Convention

Against Torture (CAT). We have jurisdiction under 8 U.S.C. § 1252, and we

deny the petition and affirm the BIA’s order.

We review for substantial evidence both the dismissal by the BIA and the

adverse credibility determination. Shrestha v. Holder, 590 F.3d 1034, 1039 (9th

Cir. 2010). Credibility determinations are owed “special deference,” and we

“will only exercise our power to grant a petition for review when the evidence

compels a contrary conclusion.” Kaur v. Gonzales, 418 F.3d 1061, 1064 (9th

Cir. 2005) (cleaned up). If the “totality of the circumstances” provides

substantial evidence for an adverse credibility determination, we will uphold it.

Alam v. Garland, 11 F.4th 1133, 1137 (9th Cir. 2021) (en banc).

Substantial evidence supports the adverse credibility finding. Lu’s

testimony contained four major, material, and significant inconsistencies. First,

Lu was inconsistent about whether she was at home alone or with her mother

when she was arrested and forced to undergo an abortion. Second, she was

inconsistent about who arrested her—a man and a woman or two women. And

third, she was inconsistent about whether her neighbor confronted the police

during her arrest or whether her neighbor remained silent and hidden. The core

of Lu’s claim is that she was forced to undergo an abortion, and all three

inconsistencies are directly connected to her arrest and forced abortion.1

1 The credibility of Lu’s testimony was also harmed by other inconsistencies about who took her to the hospital when she first learned that she was pregnant

2 To explain the inconsistencies in her testimony, Lu testified that she was

simply nervous. The agency permissibly found that explanation to be

unsatisfactory. See Aguilar Fermin v. Barr, 958 F.3d 887, 890 (9th Cir. 2020)

(affirming a determination of adverse credibility that was partly based on the

“unconvincing” explanation that the petitioner’s testimony was inconsistent

because “she was nervous.”). Moreover, Lu’s explanation for the second

inconsistency is weakened by her previous testimony to the asylum officer that

the inconsistencies were merely typographical errors. And even though the

“pregnancy is corroborated by undisputed documents, including [a] report from

[a] hospital,” that fact fails to bolster the credibility of Lu because it is not

evidence that she underwent a forced abortion. Besides, even if Lu gave a

plausible account for some of the discrepancies, the agency was not compelled

to accept her explanations. See Li v. Garland, 13 F.4th 954, 961 (9th Cir.

2021). And the evidence does not compel a conclusion contrary to the BIA’s

ruling. See Kaur, 418 F.3d at 1064.

Last, we affirm the denial of protection under CAT. When “claims under

[CAT] are based on the same statements . . . that the BIA determined to be not

credible” for establishing eligibility for asylum, the agency may rely on the

same credibility determination to deny the CAT claims. Farah v. Ashcroft, 348

F.3d 1153, 1157 (9th Cir. 2003). Lu relied on the same testimony for protection

and whether blood was drawn at that visit, and who she first saw when she woke up at the hospital.

3 under CAT as for her application for asylum and withholding of removal.

Because we affirm the BIA’s finding that the testimony of Lu was not credible

as to her application for asylum and withholding of removal, we will also deny

her CAT relief on the same grounds. And because Lu’s petition fails, the

derivative petitions of her husband and daughter also fail. See Kumar v.

Gonzales, 439 F.3d 520, 521, 525 (9th Cir. 2006) (denying petition for review

as to derivative petitioners’ application because the lead petitioner’s petition for

review was denied).

The motion for a stay of removal, Docket No. 2, is denied as moot. The

temporary stay of removal remains in effect until issuance of the mandate.

PETITION DENIED.